Kenya Says Yes to Kenyatta, No to International Court

By the Editors -
Mar 11, 2013

Kenya’s newly elected president,
Uhuru Kenyatta, told supporters last weekend that the country’s
voters had “demonstrated a level of political maturity that
surpassed expectations.” Governments around the world echoed the
sentiment.

Awkwardly, Kenya has just elected a man who is under
indictment at the International Criminal Court, accused of
crimes against humanity. Yet Western nations are right to
reserve judgment on Kenyatta as his trial plays out. And the ICC
itself could learn valuable lessons about unintended
consequences from this episode.

Kenyatta and the foreign spokesmen mean two different
things by “maturity.” For Kenyatta, it includes the refusal to
be cowed by the ICC’s proceedings. In fact, signs are that the
charges, which Kenyatta decried as Western meddling in Kenyan
affairs, energized his supporters. He won a sliver more than 50
percent of the vote (thus avoiding a runoff) on a turnout of 86
percent, the country’s highest ever.

For the U.S., Europe and others, “maturity” means an
election that doesn’t collapse into violence. That’s what
happened in 2007, when claims by one defeated candidate, Raila Odinga, of electoral fraud brought opposing camps into the
streets; the charges against Kenyatta, a supporter of incumbent
President Mwai Kibaki, relate to the ethnic killings of more
than 1,100 that followed.

Opposition Challenge

Once more the defeated candidate, Odinga is again
challenging the results, this time at Kenya’s Supreme Court, and
deploring the performance of the electoral commission whose job
was to supervise the vote. He also called for calm: “Any
violence now could destroy the country forever,” he said. A
peaceful challenge to the election under the terms of the
country’s new constitution would indeed be a sign of maturity.

Kenya’s citizens continue to vote along traditional tribal
lines. In that respect, the country has far to go before it
becomes an ordinary functioning democracy. They also want
stability, as do the foreign investors who see the country as
one of Africa’s brightest prospects. If strife can be avoided,
the International Monetary Fundreckons the economy will grow by
5.6 percent this year and 6.4 percent in 2014, up from 5.1
percent in 2012. The policy platforms of Kenyatta and Odinga
weren’t that different. The uncertainty that investors fear
arose mainly from the risk of violence.

What about the ICC’s accusations? They may well evaporate.
The court dropped charges on March 11 against one of Kenyatta’s
co-accused, Francis Muthaura, partly because a prosecution
witness recanted. Kenyatta is insisting he’s innocent and has so
far complied with the proceedings. His trial is due to start
this summer. If it goes ahead and he ceases to cooperate, this
could be less of a problem for Kenya than for the ICC and the
governments that want to see it succeed.

Despite Kenyatta’s anticolonial election pitch, Kenya is a
military and economic ally of the West, particularly in the
fight against terrorist groups in Somalia. It’s also being
courted by China and other emerging powers. Notwithstanding the
hopes of the ICC’s champions (including many European nations),
sanctions or snubs in response to Kenyatta’s indictment and
possible refusal to cooperate would clash with the West’s
immediate interests.

For the time being, Kenya’s Western allies will probably
confine themselves to what diplomats call “essential contact,”
neither endorsing Kenyatta nor seeking to force him to account.
It’s far from elegant, but there’s little choice, and on balance
that approach is correct.

Meanwhile, the ICC should learn something from its role in
swinging electoral support to Kenyatta, and from the charge
critics make that it’s an oppressor’s court. The idea that the
ICC is anti-African is by no means confined to Kenya. The court
and its supporters ought to think hard about how to reverse that
perception. Holding its trials of Africans in Africa rather than
the Hague might be a good start.

Those accused of crimes against humanity should be brought
to justice, and the ICC is a noble endeavor. But the symbolism
of summoning Africans accused of crimes in Africa to Europe so
that justice can be dispensed is just too fraught for anybody’s
good.